Predatory abuse

Predation is a label applied to certain forms of abuse of a dominant position prohibited by Article 82, the Competition Act 1998 and similar legislation.

We can advise parties to disputes relating to alleged predation on how they might be able to put their case or develop relevant economic evidence to support or refute the analyses outlined below.

Before a dispute has erupted, we can advise potential complainants or potential recipients of complaints about the validity of concerns raised, the steps that might be taken to ensure compliance, or the prospects for a successful complaint or claim.

Economic analysis of predatory abuse allegations

The essence of predatory abuse under EC and UK competition law is the sacrifice of economic value — profit — for the purpose of excluding a competitor from a market.

We can assist with the specification of a claim: identifying the relevant markets and the alleged exclusionary object, and establishing the connection to a dominant position.

We can provide economic and financial analysis of costs and revenues to help determine whether the prices (or non-price terms) offered were justified by legitimate business objectives, or whether they involved a sacrifice; and to investigate whether the conduct complained of was capable of causing the unfair exclusion of a competitor from the market.

We are familiar with the potential role of "recoupment" analysis to contribute to this analysis, and the limitations of the relevance of recoupment under EC and UK law (compared to the case law of the US Supreme Court).